LexAARUSHI DHASMANA versus UNION OF INDIA AND OTHERS
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[2013] 5 S.C.R. 371 AARUSHI DHASMANA v. UNION OF INDIA AND OTHERS (Writ Petition (Civil) No.232 of 2012) APRIL 10, 2013 [K.S. RADHAKRISHNAN AND DIPAK MIS~, JJ.] Human rights - Craniopagus Twins (CTs), two minor girls A B 'S' and 'F' - Parental consent not forthcoming either for investigation or for surgical operation - Duty of the Court - C Right to life - Right to bodily integrity - Wardship Jurisdiction ....:. Exercise of - Application of "least detrimental test" - Held: The Court has to adopt a balancing exercise - First and foremost consideration of the Court is "welfare of the children", which overrides the views or opinions of the parents - Parents D of 'S' and 'F' are against carrying on any investigation as well as surgical operation but, 'S' and 'F' being ward of the Court, the Court has got a responsibility to find out whether it is possible to save both and if not, at least one, for which , investigations are necessary - Intrinsic value of both 'S' and E 'F' is equal, but when medical investigation is carried on, a balance sheet has to be drawn up of the advantages and disadvantages which flow from the performance or the non- performance of a surgical treatment - If the balance shifts heavily in favour of one, that has to be accepted, otherwise, F both will sink and die - Proper medical inv(3stigation could not be carried out by the medical team of Al/MS, mainly, because of the parental opposition - Medical team of A/IMS could not come out with a solution, they were apprehensive of the fact that the investigations had their own risk and had also opined that detailed medical treatment would be possible G only after thorough investigation - No positive direction can be given in the absence of an expert medical opinion indicating that either of 'S' and 'F' can be· saved due to surgical 371 H 372 SUPREME COURT REPORTS [2013] 5 S.C.R. A operation or at feast one - Directions issued considering the facts and circumstances of this case - Constitution of India, 1950 - Article 21. Craniopagus Twins (CTs) are conjoined twins fused 8 at the cranium. The Supreme Court, in the instant writ petition, was concerned with the fate of Saba and Farha, Craniopagus Twins (CTs) both female aged 15 years, and their survival, unless subjected to surgical separation. The AllMS Medical Team stated in its report about the C risk involved in the operation to separate Saba and Farah which according to the Medical Team can be elaborated only after detailed investigations, at AllMS, added to that it has been stated that the investigations have their own risks. The State of Bihar and the Central Government, o however, have extended their fullest support in meeting the expenses for the surgical treatment. AllMS have also expressed opinion that they would carry out the investigations but for the unwillingness of the parents j and the family members. E F G H Disposing of the writ petition, the Court HELD: 1. Medical law: Barring a few exceptions, as a general rule, the conduct of investigations and performance of medical operation on a person, without his or her consent is unlawful. This Court, in this case, is however, concerned with two minor girls, conjoint twins, faced with a situation where their parental consent is not forthcoming either for investigation or for the surgical operation. [Para 10] [380-D-E, F] F. v. West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All E.R. 545 - referred to. 2. Right to life: Right to life is guaranteed under Article 21 of the Constitution of India, so also the right to AARUSHI DHASMANA v. UNION OF INDIA 373 bodily integrity. In the absence of any medical report, it A cannot be said as to whether both Saba and Farah could be saved or either of them. There can also be conflict of interests between the CTs that is Saba and Farha, in such situation the Court has to adopt a balancing exercise to find.out the least detrimental alternative. This Court is not B in a position to undertake that exercise in the instant case, because there is no medical report stating that if CTs are subjected to surgical operation, one of them might survive. If there is an authentic medical report that the life of one could be saved, by surgical operation, c otherwise both would die, this Court would have applied the "least detrimental test" and saved the life of one, even if parents are not agreeable
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